Can a dead suspect's spouse be compelled to testify?

Can a husband or wife be forced to reveal prior communications with spouse?


In the Boston Marathon bombing investigation, FBI and other agents have interviewed the widow of the suspect who was killed in a shoot-out with police shortly after the bombings. Can the widow claim the spousal privilege and refuse to speak with police? Do they have to read her the  Miranda  warning?


Yes, there is one privilege she could claim that relates to the marriage, but other factors in that case may alter her privileges, rights, and the latitude the government has in questioning her. The answer to whether officers have to read the widow her  Miranda  rights is more complicated and depends on some of the unique factors presented.

This article discusses federal law on privileges and rights. For more information about spousal privilege, see Marriage Rights and Benefits.

For more information about the  Miranda  decision and rights, see  Miranda Rights: What Happens If The Police Don't Read Your Rights.

Does the Surviving Spouse Have a Spousal Privilege?

Privileges are exceptions to the rule that no person may refuse to testify if called as a witness in a proceeding. These exceptions are designed to protect certain important relationships, like marriage. There are two types of marital privilege: spousal testimonial privilege; and confidential marital communications privilege.

As the names indicate, the two types cover different situations.

No Spousal Testimonial Privilege for the Surviving Spouse

The testimonial privilege applies only where a spouse is called to testify against the other spouse in a criminal matter. Both spouses may claim the privilege, but there must be a valid marriage at the time that the privilege is claimed. A widow, therefore, cannot claim the privilege because the marriage has ended in death.

Surviving Spouse May Claim Confidential Marital Communications Privilege

However, the marital communications privilege survives the death of the other spouse and even the end of the marriage by other means (such as divorce), so long as:

  • the spouses were legally married at the time of the communication
  • both spouses have kept the communication confidential; and,
  • the surviving spouse wishes to claim the privilege.

So, the widow of the suspect in the Boston bombing case could refuse to testify about communications between her husband and herself, so long as they both kept the contents of those communications confidential. If, for example, the deceased husband also discussed the same matters with his alleged accomplice, the marital communication was not kept confidential and the widow could not claim the privilege to avoid testifying about her discussions with her husband.

And, if the widow was an accomplice herself to the bombing, she may not claim the marital communications privilege. However, as a suspect herself, she would have constitutional protections.

Does the Surviving Spouse Have a Right to Remain Silent Under  Miranda?

Yes, if the widow is questioned in custody, she has a right to refuse to incriminate herself under the Fifth Amendment to the Constitution and the questioning authorities must advise her of this right (in other words, read her the  Miranda  warning). As of the date of this writing, the FBI and other authorities had merely “interviewed” the widow, according to press reports. If the widow attended the interview voluntarily and was free to go at any time during the interview, she was not in custody and not entitled to  Miranda  rights—she could simply walk out of the room if she did not wish to provide answers to the authorities’ questions.

If, however, the “interview” was conducted in such a way that a reasonable person in the widow’s shoes would not have felt free to go, she was in custody and entitled to the  Miranda  warning of her right to remain silent.

Privileges and Rights Not to Testify Depend on the Circumstances

As you can see, the question of whether or not a surviving spouse has a privilege, or even a constitutional right, not to testify about a dead spouse depends greatly upon the type of privilege claimed, the nature of the communication in question, and the context in which authorities want to ask questions about the communication. And, privileges are often governed by state law. For questions about spousal or other legal privileges, contact a lawyer with experience in the law in your state.

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